Righthaven Loses First Lawsuit; Judge Says Copying Was Fair Use

from the business-model-sunk dept

We've been following, with great interest, the antics of Righthaven, the company funded by the Las Vegas Review-Journal, which has been suing all sorts of random websites for copyright infringement after posting articles (or even snippets of articles) on their sites, often with a link back. A variety of different defenses have been raised by those sued, with almost all of them claiming fair use -- which seemed like a credible claim to us (though, of course, others have disagreed).

Now, in a pretty big setback for Righthaven's entire strategy, the first ruling on this question has been made, and... the judge dismissed the case, claiming that it was fair use. As Eric Goldman notes in the article linked here, it's a bit surprising that the judge ruled fair use so early in the process: "Because the case so clearly lacked merit, the judge prudently is trying to end the case early rather than letting it drag on for months and years, wasting lots of time and money in the process."

That said, this particular case did involve someone who only posted 8 sentences out of a 30-sentence article, whereas many of the other lawsuits have involved entire articles being posted. The 8 sentence part certainly played into the fair use analysis, but other elements of the fair use analysis would certainly apply to others, with a key one being: "Nelson's use of the copyrighted material is likely to have little to no effect on the market for the copyrighted news article."

Oddly, the article notes that the guy, Nelson, appears to have already settled with Righthaven, though it wasn't clear the court recognized this. Hopefully, that settlement didn't involve him paying any money, because if it did, he should demand it back. Here's the ruling:

Unfortunately, the news is not all good on the Righthaven front. In a different case with a different judge on the same day, a request for dismissal was rejected. And this one is really unfortunate. It involved a site that had user-generated content, and a user posted the content. The site owner argued that it was not responsible for the content under basic liability laws. However, because the site did not register a DMCA agent, it's not protected by the official DMCA safe harbors. Now, some have argued that this shouldn't matter. Basic liability issues should make it clear that whoever posted the actual content should be liable, rather than the third party service provider -- but the judge in this case didn't find that point compelling enough for dismissal, though it's possible the issue (and others) could be revisited down the line (though Righthaven is apparently working hard to get that case settled). The article also notes that a bunch of other sites did cave in and pay up...

I'm stunned that the judge granted the motion to dismiss on the fair use defense. I didn't think that was really possible. I suspect Righthaven would have a good chance of getting this reversed on appeal, but it sounds like we'll never find out though since they apparently settled already.

Re:

Frankly I'm stunned and amazed by this early outcome too.

After all, Righthaven was clearly in the right (stupid judge must have accidentally taken off his "moron in a hurry" glasses, then made an informed and sound legal decision). I think Righthaven (Copyright Trolls - entire business model is to do nothing but sue) should even be allowed to suck the money out of everyone who takes a single look at their masterful "works of art" (purchased for the sole right to sue). How dare we even look at one of their web pages! We are not worthy!

Their next honorable action should be to collect i.p. addresses of everyone who dares to look at their copyrighted material, and sue each and every one for infringement (because we've made a locally cached copy on the hard drive for our browser, another in system RAM and a third in the video RAM - Three copies = Fair Use??? only in "Insane-o Land"), and send the scoundrels pre-settlement letters now so they can repent their sins (buy paying the right amount of money for Righthaven to "go away".)

Company motto found on business card : "Righthaven - We're R-I-G-H-T. You're W-R-O-N-G. See you in East Texas - a.k.a. "Slam Dunk" court"

Go team Righthaven (straight into one of the nine circles of hell, placed in the fourth and eighth respectively)!

He agrees that finding fair use on a motion to dismiss is rare, and as he put it, the judge, "cut some procedural corners." He also thinks the ruling would be "vulnerable" on appeal. I was able to find a few cases on Westlaw where fair use was determined on a motion to dismiss, so it's not unheard of. However, those cases involved incidental copying, not deliberate copying like we have here. I'm still shaking my head at this ruling... I don't have any problem with this being considered fair use, I just don't think the judge should have cut corners to get there.

Just the other day on techdirt we were discussing whether summary judgment was even appropriate to decide fair use, and some people thought that it wasn't--they thought it should always be a jury that decides. Would those same people mind if the judge found fair use on a motion to dismiss? I doubt it. But you can't have it both ways.

3 steps to profit

Why did Righthaven choose such a lousy example as one of their first cases to trial? 8 sentances our of a 30 sentence article sounds like fair use. There are 1000's of examples of someone copying the entire article, why didn't they go with one of those cases? Just odd I think.